1981 Ethics Opinion Allowing Limited Employment of Suspended Lawyer by Law Firm
In 1981 Professor Martin Huelsmann wrote the following ethics opinion regarding the ability and conditions of a lawyer to hire a suspended lawyer. These opinions are advisory opinions and are not binding on the KBA.
The Supreme Court is currently considering an amendment to the Sup. Ct. rules that would forbide any employment of a suspended lawyer by a lawyer.
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-255
Issued: November 1981
Question: May a lawyer employ a former lawyer who is presently disbarred or under
suspension to perform duties for the lawyer?
Answer: Qualified yes.
References: DR 3-101(A); Canon 9; KBA U-14; SCR 3.020, 3.470; ABA Informal
Opinion 7, 1046, 1434; Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937);
Lester v. Kentucky Bar Assn, 532 S.W.2d 435 (Ky. 1975)
The purpose of this opinion is to reconsider KBA E-228. The Ethics Committee
hereby overrules and replaces KBA E-228 with the following opinion.
In Informal Opinion 7, the American Bar Association stated “an attorney should not
employ a disbarred lawyer even to do only office work and see no clients, ‘because of the
practical difficulty of confining his activities to an area which does not include the practice
of law and be cause such employment would show disrespect to the courts.”’ Ethics
opinions in other states are at best conflicting.
In Kentucky, the Court in Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937), held
that “practicing law” is not confined to performing services in actions and proceedings in
courts of justice, but includes giving advice, preparing wills, contracts, deeds, mortgages,
and other instruments of legal nature.
The Court in 1975, in dicta, held that a disbarred attorney may serve as a “law
clerk” to an attorney, however, the court will look behind the title and examine the duties
performed to determine the real nature of the work. Lester v. Kentucky Bar Assn, 532
S.W.2d 435 (Ky. 1975).
In SCR 3.020 the court defines what the practice of law is:
The practice of law is any service rendered involving legal
knowledge or legal advice, whether of representation, counsel or advocacy
in or out of court, rendered in respect to the rights, duties, obligations,
liabilities, or business relations of one requiring the services. But nothing
herein shall prevent any natural person not holding himself out as a
practicing attorney from drawing any instrument to which he is a party
without consideration unto himself therefore. An appearance in the small
claims division of the district court by a person who is an officer of or who
is regularly employed in a managerial capacity by a corporation or
partnership which is a party to the litigation in which the appearance is
made shall not be considered as unauthorized practice of law.
Further, SCR 3.470 “Attorney Aiding Unauthorized Practice” provides:
Any attorney who knowingly aids, assists or abets in any way, form
or manner any person or entity in the unauthorized practice of law shall be
guilty of unprofessional conduct.
See also DR 3-101(A) which states: “A lawyer shall not aid a non-lawyer in the
unauthorized practice of law.” There are those in the legal profession who may argue that
the best interest of the organized Bar would be served by hiring employees who have been
disbarred, suspended, or have resigned from the practice of law. However, there seems to
be no rule per se excluding the hiring of these individuals. It would seem that the best
interest to society, as well as to the ex-lawyer, is that they should be employable within the
legal system to undertake certain functions that are not the unauthorized practice of law.
Accordingly, with some trepidations, the Ethics Committee feels that the ex-lawyer
can be employed with certain General Provisos, as well as Specific Provisos, as follows:
1. The individual may do anything a lay person could do.
2. The individual may perform such work which is of a preparatory or
1. The individual may not have any contact whatsoever with a client of a
2. The individual is not a Paralegal within SCR 3.700.
3. The individual may not have an office, or place, in the lawyer’s facility.
4. The individual may perform any drafting acts, as long as they are
submitted in draft form only to the responsible lawyer for approval.
5. The individual may perform clerical aspects of a probate matter.
6. The individual may do an abstract title examination.
7. The individual may provide legal research to a lawyer.
It seems clear to the Ethics Committee that an attorney who hires a suspended,
disbarred, or resigned attorney does so at the attorney’s own risk. If the previous lawyer
engages in any unauthorized practice, the lawyer employing that person will be guilty of
unprofessional conduct and will be appropriately disciplined by the Supreme Court of
Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). Note that the Rule provides: “Both informal and formal
opinions shall be advisory only; however, no attorney shall be disciplined for any
professional act on his part performed in compliance with an opinion furnished to him on
his petition, provided his petition clearly, fairly, accurately and completely states his
contemplated professional act.”